TEACHER REGISTRATION BOARD OF WESTERN AUSTRALIA and CLARKE - [2021] WASAT 52

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: TEACHER REGISTRATION ACT 2012 (WA)
CITATION:   TEACHER REGISTRATION BOARD OF WESTERN AUSTRALIA and CLARKE [2021] WASAT 52
MEMBER:   PRESIDENT PRITCHARD
DR E MARILLIER, MEMBER
MS M CICCARELLI, SESSIONAL MEMBER

HEARD:   31 JULY 2020
DELIVERED          :   28 APRIL 2021
FILE NO/S:   VR 39 of 2020
BETWEEN:   TEACHER REGISTRATION BOARD OF WESTERN AUSTRALIA
Applicant

AND

GEOFFREY CLARKE
Respondent

Catchwords:

Disciplinary penalty - Teacher Registration Act 2012 (WA) - Where respondent engaged in serious misconduct which constituted a disciplinary matter - Question of appropriate penalty - Where agreed minute proposed that the Tribunal should order respondent to be disqualified from applying to be registered as a teacher for a period of 3 years backdated to 3 May 2017 - Where practical effect of making that order would mean the Tribunal would not have imposed any prospective order of disqualification on respondent - Whether allowance should be made for the fact that respondent has not been registered as a teacher since 3 May 2017 - Whether open to the Tribunal to backdate the commencement of disqualification period - How allowance should be made for the fact that the respondent's non-registration was attributable to a significant degree to his belief that he would not be re-registered until disciplinary proceedings concluded - Period of disqualification reduced to allow for 2 years and 6 months of the period of non-registration

Legislation:

Public Sector Management Act 1994 (WA)
Sentencing Act 1995 (WA)
State Administrative Tribunal Act 2004 (WA)
Teacher Registration Act 2012 (WA)

Working with Children (Criminal Record Checking) Act 2004 (WA)

Result:

Respondent disqualified from applying for registration as a teacher for a period of 6 months from the date of the Tribunal's orders

Category: A

Representation:

Counsel:

Applicant	:	Ms P Femia
Respondent	:	In Person

Solicitors:

Applicant	:	State Solicitor's Office
Respondent	:	N/A

Case(s) referred to in decision:

Chenv Healthcare Complaints Commission [2017] NSWCA 186; (2017) 95 NSWLR 334
Chiropractors' Board of Australia and Ebtash [2020] WASAT 86 (S)
Lee v Health Care Complaints Commission [2012] NSWCA 80
Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261
Medical Board of Australia and McCarthy [2020] WASAT 12 (S)
Medical Board of Australia and Singh [2017] WASAT 33 (S)
Medical Board of Australia v Leggett [2015] QCAT 240
Mustac v Medical Board of Western Australia [2004] WASCA 156
Panegyres v Medical Board of Australia [2020] WASCA 58 (S)
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
Queensland College of Teachers v Lobo [2019] QCAT 26
Queensland College of Teachers v Teacher CMH [2019] QCAT 164
Queensland College of Teachers v Teacher XBW [2019] QCAT 240
Singh v Medical Board of Australia [2019] WASCA 51

REASONS FOR DECISION OF THE TRIBUNAL

The Teacher Registration Board of Western Australia (Board) and Mr Clarke have submitted a minute of proposed orders, which reflects their agreement that there is a proper cause for disciplinary action against Mr Clarke under s 83(1) and s 84(1) of the Teacher Registration Act 2012 (WA) (Act), on the basis that while registered as a teacher, Mr Clarke engaged in serious misconduct, the nature of which renders him unfit to be registered as a teacher.
The facts which the parties have agreed, and which they agree support a finding that there is a proper cause for disciplinary action, are set out in Annexure A to the minute of proposed orders and are also reproduced in Annexure A to these reasons (Annexure A). We will have a little more to say about those facts later in these reasons. For present purposes it suffices to say that we accept that the conduct in which Mr Clarke engaged is conduct which constitutes a disciplinary matter and in respect of which the Tribunal is able to take action under s 84(1)(a) of the Act, namely to make an order that Mr Clarke, who is no longer registered as a teacher, is disqualified from applying for registration for a specified period.
In the parties' minute of proposed orders, the Board and Mr Clarke proposed that, pursuant to s 84(1)(a) of the Act, the Tribunal should order that Mr Clarke 'be disqualified from applying to register as a teacher for a period of 3 years backdated to 3 May 2017.' The practical effect of that order, if made, would have been that the Tribunal would have imposed an order of disqualification from applying for registration which was devoid of any prospective operation.
Following the receipt of the minute of proposed orders, we put the parties on notice that we had concerns about the appropriateness of the orders agreed by the parties, in so far as those orders concerned the penalty which should be imposed. We therefore invited the parties to make submissions about the penalty which should be imposed. They did so.
Having taken those submissions into account, we are of the view that the conduct in which Mr Clarke engaged constituted a disciplinary matter which warrants the Tribunal making an order that Mr Clarke be disqualified from applying for registration as a teacher, for a specified period after the date of the Tribunal's order.
Taking into account all of the circumstances of this case, including the mitigating factors raised by Mr Clarke at the hearing, we consider that the period of disqualification which should be imposed is a period of 3 years. However, as we explain below, Mr Clarke has not been registered as a teacher since 2017. The Board accepts that his decision not to seek re-registration at that time reflected the fact that an investigation had been commenced into his conduct. We are of the opinion that some allowance should be made for the fact that Mr Clarke has been unable to work as a teacher since 2017, in part due to the investigation of the disciplinary matters the subject of these proceedings. However, as we explain below, we do not consider that it is appropriate to give Mr Clarke credit for the entire period since 2017 in which he has not been registered as a teacher.
For the reasons set out below, we are of the view that it is not open to the Tribunal to make an order in terms which backdates the commencement of that period of disqualification to a date prior to the date of the Tribunal's orders. However, we consider that Mr Clarke should be given some credit for the period since 3 May 2017 in which he has not been registered as a teacher. The appropriate period for which Mr Clarke should receive credit is 2 years and 6 months. Consequently, Mr Clarke should be disqualified from applying for registration as a teacher for a period of 6 months from the date of our order. We emphasise that that period of disqualification should be understood as a further period of disqualification from applying for registration as a teacher, in addition to the 2 years and 6 months of non-registration for which Mr Clarke should be given credit. Our reasons for coming to this conclusion are set out below.

The regulation of the conduct of teachers registered under the Act

We were not referred to any decision of the Tribunal in relation to the principles which should guide the Tribunal in imposing a penalty under the Act. This appears to be the first occasion on which the Tribunal has published reasons in relation to the imposition of a penalty under the Act. That being the case, it is appropriate to spend a little time identifying the principles which we consider should guide the Tribunal in matters of this kind. In order to do so, it is necessary to view the Tribunal's present functions within the context of the Act's approach to the regulation of the conduct of teachers.
One of the main purposes of the Act is to provide for the regulation of the teaching profession in Western Australia.[1] The Act achieves that purpose by prohibiting persons who are not registered teachers from teaching in an educational venue,[2] by prohibiting the employment of unregistered persons to teach in such venues,[3] by imposing requirements for the registration of teachers,[4] by imposing requirements concerning the personal conduct of persons who are registered as teachers,[5] and by establishing the Board which occupies a key role in administering the Act.[6] For present purposes, the registration requirements and the provisions concerning the regulation of the conduct of teachers (through the investigation of complaints for disciplinary matters and impairment) are of greatest relevance.
[1] Long title to the Act.
[2] See s 6 of the Act.
[3] See s 7 of the Act.
[4] See Pt 3 of the Act.
[5] For example, the requirements that a person be a fit and proper person to be registered as a teacher, and that they are of good character: see s 15(c) and s 24(d) of the Act.
[6] See Pt 6 of the Act.
The underlying objective of the regulation of the teaching profession in these various ways is the protection of children who are taught by teachers in educational venues. That underlying objective is reflected in s 5 of the Act which provides that '[a] person or body with functions under this Act must, in the performance of those functions, regard the best interests of children as the paramount consideration'. That legislative command applies to the Board, and it also applies to the Tribunal in the performance of its functions under the Act.

Registration

In various respects, the Act makes clear that if a teacher's conduct, whether as a teacher, or in their private capacity, does not meet the standards of behaviour expected of a teacher, or demonstrates they are not of good character, they may be found unfit to be registered as a teacher.
First, in so far as the requirements for full registration are concerned,[7] the Act requires that a person seeking registration has specified educational qualifications,[8] meets prescribed standards for English language skills,[9] meets professional standards approved by the Board[10] (the purpose of which is to detail the abilities, experience, knowledge or skills expected of registered teachers),[11] and 'is a fit and proper person to be a registered teacher'.[12]
[7] There are modified requirements for provisional registration and limited registration as a teacher: see s 16 and s 17 of the Act. A person may also seek non-practising registration: s 18 of the Act.
[8] See s 15(a) of the Act.
[9] See s 15(d) of the Act; and see also r 10 of the Teacher Registration (General) Regulations 2012 (WA) (Regulations).
[10] See s 15(b) of the Act.
[11] See s 20(2) of the Act.
[12] See s 15(c) of the Act.
In assessing whether a person is a fit and proper person to be registered as a teacher, the Board is to have regard to a variety of matters. These include the person's history of compliance with the Act, or with the law of any other State or Territory, or of New Zealand, in relation to teacher registration;[13] any refusal of registration, or suspension or cancellation of the person's registration as a teacher (or their equivalents in other jurisdictions);[14] the person's criminal history;[15] whether the person has contravened any order of the Board, a disciplinary committee, the Tribunal, or any other similar body in another jurisdiction;[16] any behaviour of the person that does not satisfy a standard of behaviour generally expected of a teacher or that shows that the person is not of good character;[17] and any other matters that the Board considers appropriate.[18]
[13] See s 24(a) of the Act.
[14] See s 24(b) of the Act.
[15] See s 24(c) of the Act.
[16] See s 24(e) of the Act.
[17] See s 24(d) of the Act.
[18] See s 24(g) of the Act.
Secondly, the Act provides that certain conduct will mean that a person is not entitled to be registered as a teacher. That conduct includes: if the person has been convicted of a sexual offence involving a child; if a negative notice has been issued to the teacher under the Working with Children (Criminal Record Checking) Act 2004 (WA); if the person refuses to consent to a criminal record check by the Board; if a teaching qualification has been withdrawn or cancelled by the institution which conferred it; or if a teaching qualification was obtained fraudulently.[19]
[19] See s 27(2) of the Act.
Thirdly, a registered teacher is obliged to give the Board written notice if they are ordered to pay damages or compensation as a result of civil proceedings arising out of the teacher's practice as a teacher or out of events while the person was engaged in teaching;[20] or if the teacher is convicted of an offence the statutory penalty for which includes imprisonment.[21] The Director of Public Prosecutions and the Commissioner of Police are also obliged to notify the Board if they become aware of certain matters, including that a registered teacher is charged with, or convicted of, a sexual offence involving a child; or is convicted of an indictable offence.[22] In addition, an employer of a registered teacher at an educational venue is to give written notice to the Board if it undertakes an investigation of certain kinds into a teacher, and if as a result of that investigation, the teacher is suspended, dismissed, resigned or otherwise no longer teaches at the venue. The investigations liable to trigger this obligation are an investigation into the conduct of a registered teacher at the venue, or an investigation held because the employer had reason to believe that the teacher was seriously incompetent, or engaged in serious misconduct.[23]
[20] See s 38(1)(a) of the Act.
[21] See s 38(1)(b) of the Act.
[22] See s 41 of the Act.
[23] See s 42 of the Act.
These disclosure obligations ensure that the Board is apprised of information which may warrant its investigation of whether a person continues to be a person entitled to registration as a teacher under the Act.
Finally, registration as a teacher is for fixed periods. Full registration as a teacher is for a period of 5 years (although shorter periods of registration for other categories of teacher may be granted).[24] The Board may also impose conditions on a person's registration as a teacher.[25] Fixed periods of registration ensure that a person seeking re-registration must satisfy the Board that they continue to meet the requirements for registration,[26] so that they continue to meet the professional standards set by the Board and therefore have maintained their abilities, experience, knowledge and skills relevant to working as a teacher, and remain a fit and proper person to be registered as a teacher; and that they have met other requirements set by the Board for the renewal of their registration, which include meeting minimum requirements for the number of full time days' teaching undertaken, and the number of hours of professional development undertaken, since their registration was last renewed.[27] If the Board becomes aware that a teacher is not entitled to be registered, it may cancel the registration of that teacher.[28]

Complaints

[24] See s 23(1) and (2) of the Act, and see also r 15 of the Regulations.

[25] See s 25 and s 26 of the Act, and r 16 and r 17 of the Regulations.

[26] See s 22(2) of the Act.

[27] See s 22(2)(c) of the Act, and r 13 of the Regulations.

[28] See s 27 of the Act.

Part 5 of the Act establishes the framework within which complaints in relation to teachers may be made, investigated, and, if substantiated, acted upon. The procedure for dealing with complaints which concern disciplinary matters and impairment matters is set out in some detail in the Act. For present purposes, we will focus primarily on complaints in relation to disciplinary matters.
Disciplinary matters are defined in the Act to include:[29] that a teacher has been charged with a sexual offence involving a child;[30] that a teacher has been convicted of an offence which renders him or her unfit to be registered; that a teacher has been seriously incompetent as a teacher, or has engaged in serious misconduct the nature of which renders them unfit to be registered; and that a teacher has contravened the Act, a condition imposed on his or her registration, or an order made under Part 5 of the Act, or has failed to comply with an undertaking given to the Board under the Act.
[29] See s 47 of the Act.
[30] See the definition in s 46 of the Act.
By contrast, impairment matters include:[31] that a teacher is affected by his or her use or dependence on alcohol or drugs to such an extent that their ability to practise as a teacher is or is likely to be affected; or that they suffer from an impairment (that is, a mental disability, injury or physical illness)[32] to such an extent that their ability to practise as a teacher is or is likely to be affected.
[31] See s 48 of the Act.
[32] See s 46 of the Act.
Following the investigation of a complaint (or alternatively, the rejection of a complaint in certain circumstances),[33] the Board may refer a complaint concerning either a disciplinary matter or an impairment matter to a committee established by the Board to deal with such matters, or to the Tribunal.[34]
[33] See s 57 of the Act.
[34] See s 49, s 50 and s 53 of the Act.
A disciplinary committee must make a preliminary assessment of a complaint referred to it and deal with that complaint in one of a number of ways, namely: by dismissing the complaint, making an interim disciplinary order, dealing with the complaint, requesting that the Board undertake further investigations, deferring consideration of the complaint pending enquiries by another body, or referring the complaint to another body to deal with it.[35] If the disciplinary committee considers that a disciplinary matter may exist in relation to a teacher, and if the teacher consents to the committee conducting an inquiry, the committee may do so.[36] After doing so, the committee may deal with the complaint in one or more of a number of ways, including by: dismissing the complaint; ordering that the teacher be cautioned or reprimanded; ordering that the teacher pay a fine to the Board not exceeding $5000; ordering that the registration of the teacher be suspended for a period not exceeding two years; ordering that a condition or conditions be imposed (or modified) on the teacher's registration; in the case of a teacher found to be seriously incompetent, ordering the cancellation of the teacher's full registration and substitution of provisional registration; and recommending to the Board that the complaint be referred to the impairment review committee or to the Tribunal.[37]
[35] See s 62 of the Act.
[36] See s 63 of the Act.
[37] See s 70 of the Act.
In dealing with a complaint referred to the impairment review committee, there is more of a therapeutic focus. The committee may, with the teacher's consent, require the teacher to be examined by a doctor, or if the teacher does not consent or undergo that examination, the committee must recommend to the Board that it refer the matter to the Tribunal.[38] If the examination is undertaken, then after considering certain prescribed information,[39] the committee must deal with the complaint in one of a number of ways: by dismissing the complaint, by recommending to the Board that the complaint be referred to a disciplinary committee or to the Tribunal, or by requesting that the teacher consent to the imposition of conditions on his or her registration, or to having his or her registration suspended for a period not exceeding two years, or to undergo counselling.[40] In the event that the teacher does not consent to a request of the latter kind then the committee must recommend that the Board refer the complaint to the Tribunal.[41] In either case, the Board may order that the condition be imposed on the teacher's registration, order that the teacher's registration be suspended, decide to take no action, or refer the matter to the Tribunal.[42]
[38] See s 76 of the Act.
[39] See s 78(1) of the Act.
[40] See s 78 of the Act.
[41] See s 79 of the Act.
[42] See s 80 of the Act.

The Tribunal has a role in dealing with complaints of both disciplinary matters and impairment matters which are referred to it, but for present purposes, it suffices to focus on the Tribunal's role in dealing with disciplinary matters.
If the Tribunal finds that a disciplinary matter (see par [19] above) exists in relation to a teacher, the extent of the Tribunal's powers to impose a penalty depend upon whether the person is still registered as a teacher.
If the finding that a disciplinary matter exists is in respect of a person who is registered as a teacher, the Tribunal may take any action, or make any order that a disciplinary committee may take or make under s 70(1)(a) to (f) of the Act (namely to dismiss the complaint; order that the teacher be cautioned or reprimanded; order that the teacher pay a fine to the Board not exceeding $5000; order that the registration of the teacher be suspended for a period not exceeding two years; order that a condition or conditions be imposed (or modified) on the teacher's registration; or (in the case of a teacher found to be seriously incompetent) order the cancellation of a teacher's full registration and substitution of provisional registration).[43] In addition, or in the alternative, the Tribunal may order the cancellation of the person's registration as a teacher.[44] If an order for cancellation is made, the Tribunal may also order that the person is disqualified from applying for registration as a teacher for a period of time specified in the order.[45]
[43] See s 84(1)(b)(i) of the Act.
[44] See s 84(1)(b)(ii) of the Act.
[45] See s 84(1)(b)(iii) of the Act.
If, as in the present case, the Tribunal's finding that a disciplinary matter exists is made in respect of a person who is no longer registered as a teacher, the Tribunal may take any action, or make any order, that a disciplinary committee may take or make in respect of a teacher under s 70(1)(a), (b) or (c) (namely, to dismiss the complaint, order that the teacher be cautioned or reprimanded, or order that the teacher pay to the Board a fine not exceeding $5000).[46] In addition, or in the alternative, the Tribunal may order that the person is disqualified from applying for registration as a teacher for a period of time specified in the order.[47]
[46] See s 84(1)(a)(i) of the Act.
[47] See s 84(1)(a)(ii) of the Act.
It can thus be seen that by the complaint process, the Act provides the means by which allegations of conduct which may render a teacher unfit to continue to be registered may be investigated, considered and, if found to have been established, acted upon. In this way, the Act seeks to ensure that all persons registered as teachers are persons who are fit and proper (both as to their professional and personal conduct, their competence, and their physical and mental health) to continue to be registered as teachers.

Some conclusions in relation to the maintenance of standards and the personal conduct of teachers under the Act

That the Act makes such extensive provision for maintaining the professional qualifications and personal conduct of persons registered as teachers is hardly surprising. By their registration, teachers occupy a privileged position. They, and they alone, are permitted by the Act to engage in teaching in educational venues. For that purpose, they are entrusted with the supervision and control of the students they teach. It is essential that teachers achieve, and maintain, appropriate qualifications and skills to enable them to provide the highest quality of education to their students. And given teachers' roles in the supervision and control of the children they teach, it is essential that parents and guardians, children (that is, students at educational venues), and the community generally, have confidence that teachers are persons who can be entrusted with the care of children, so that the safety and wellbeing of those children will be maintained at all times.
Informed by that overview of the purpose and relevant provisions of the Act, we turn to consider the principles which should guide the Tribunal in imposing a penalty in respect of conduct which constitutes a disciplinary matter under the Act.

What principles should guide the Tribunal in the imposition of a penalty for a disciplinary matter?

The Tribunal's role in imposing a penalty when it finds that a disciplinary matter exists is similar to the Tribunal's role in other vocational disciplinary contexts which are regulated by legislation in this State. The regulation of the practitioners in those professions – especially law, medicine and allied health vocations – shares some common features with the regulation of teachers under the Act. Those practitioners, like teachers, enjoy a statutorily-granted monopoly on the entitlement to engage in their profession. Broadly speaking, in the case of each of those professions, as in the case of teachers, the legislation is concerned to maintain the highest standards of education and training, and high standards of personal integrity and conduct on the part of practitioners themselves, so as to maintain public confidence in the quality of service or care those practitioners will provide. In order to maintain those standards of professional and personal behaviour, the legislation in each case provides for disciplinary bodies, including the Tribunal, to impose penalties designed to ensure that practitioners will meet the standards of education and training, and of personal conduct, expected of them, and that if they do not, they will not be permitted to continue to enjoy the privilege of working in their profession.
For that reason, the principles which guide the Tribunal in relation to the imposition of penalties in disciplinary matters in relation to practitioners in professions such as law, medicine or allied health vocations, also provide broad guidance to the Tribunal in its vocational regulatory role in relation to teachers under the Act. The general principles which apply to penalties in disciplinary matters concerning lawyers, doctors and allied health professionals are well settled.[48] Drawing on those principles, we are of the view that the following principles should be applied in relation to disciplinary matters concerning teachers under the Act.
[48] See, for example, Singh v Medical Board of Australia [2019] WASCA 51 (Singh) which approved the approach taken by the Tribunal in Medical Board of Australia and Singh [2017] WASAT 33 (S) (Medical Board of Australia and Singh).
First, the purpose of disciplinary proceedings under the Act is to protect the children who are taught by teachers in educational venues, rather than to punish the teacher in the sense in which punishment is imposed under the criminal law. Children are protected by the making of orders which will prevent a person who is unfit to practise as a teacher from teaching in educational venues, or by making orders which secure the maintenance of proper professional standards.[49]
[49] Cf Singh [30]; Panegyres v Medical Board of Australia [2020] WASCA 58 (S) [6].
Secondly, the protection of children under the Act is liable to be achieved in various ways. There may be a need to protect children from the risk of inappropriate conduct by a teacher (including serious misconduct, or serious incompetence), there may be a need to bring home to the teacher the seriousness of the conduct which constitutes the disciplinary matter, and there may be a need to deter the teacher from future conduct constituting a disciplinary matter. The protection of children may also require an order which emphasises to other members of the teaching profession, or which reassures parents and guardians, children, and the public generally, that a certain type of conduct by a teacher is not acceptable conduct. The purpose of an order of that kind may thus be regarded as akin to 'general deterrence'.[50]
[50] Cf Singh [32]; see also Mustac v Medical Board of Western Australia [2004] WASCA 156 [126].
Thirdly, as the purpose of disciplinary proceedings under the Act is the protection of children who are taught in educational venues, the impact that an appropriate penalty will have on a teacher for whom a disciplinary matter is found to exist, and any personal hardship to the teacher, are necessarily secondary considerations.[51]
[51] Cf Singh [33].
Fourthly, of particular significance in any given case will be whether the finding that a disciplinary matter exists reveals that the teacher is unfit to be registered as a teacher. Where a teacher who is registered to teach is, by their conduct, regarded as permanently or indefinitely unfit to teach, the cancellation of their registration rather than its suspension will (at least ordinarily) be the appropriate response.[52] While permanent or indefinite unfitness to teach will ordinarily be a sufficient basis for cancelling the teacher's registration,[53] it is not a necessary condition for cancellation of a teacher's registration under s 84(1)(b)(ii) of the Act.[54]
[52] Cf Singh [34], [37].
[53] Cf Singh [38], referring to Chen v Healthcare Complaints Commission [2017] NSWCA 186; (2017) 95 NSWLR 334 (Chen) [17] (Basten JA, Leeming and Payne JJA agreeing).
[54] Cf Singh [38], referring to Chen [17] (Basten JA, Leeming and Payne JJA agreeing).
Whether or not a person is registered as a teacher at the time of the finding that a disciplinary matter exists, the Tribunal has the power, under either s 84(1)(a)(ii) or s 84(1)(b)(iii), to make an order specifying a period within which the person is disqualified from applying for registration as a teacher. That power is to be exercised for the protective purposes that apply to the disciplinary proceeding generally.
All of the various aspects of the protection of children (discussed at [34] above) will be relevant to whether the Tribunal orders a period of disqualification, and, if so, what that period should be.[55]
[55] Cf Singh [40], [43].
Fixing a period within which re-registration may not be sought indicates the minimum period within which the Tribunal considers the teacher should not be able to practise as a teacher. But it also permits the possibility that an application for re-registration after that period will be made to, and considered by, the Board. In determining what order to make, the Tribunal will consider all aspects of the possible orders available to it.[56] It is a matter for the Tribunal to determine the weight to be given to the various considerations relevant to the exercise of the power to impose a disqualification period.[57]
[56] Cf Chen [22] (Basten JA, Leeming and Payne JJA agreeing).
[57] Cf Singh [45].
The appropriate sanction is to be considered at the time of the imposition of the penalty by the Tribunal, and not by reference to the date of the conduct which gave rise to the disciplinary matter.[58]
[58] Cf, for example, Medical Board of Australia and Singh [24].
In other disciplinary cases (unrelated to teachers),[59] the Tribunal has identified various considerations which may be relevant in determining an appropriate penalty in a vocational proceeding. Many of those considerations[60] provide a useful framework for considering the penalty which should be imposed in relation to a disciplinary matter involving a teacher, namely:
[59] Medical Board of Australia and Singh [30].
[60] Not all of the considerations applicable in relation to legal and medical practitioners will be relevant in the case of penalties imposed on teachers. By way of example, in the case of legal and medical practitioners, it is essential that other practitioners are able to rely on the word of the practitioner in question. That being the case, instances of misleading conduct or dishonesty are of particular significance to penalty, and especially to the practitioner's fitness to practice. Trustworthiness in that sense, while not irrelevant, does not have the same significance in the teaching profession.
(i)Is there a need to protect children against further conduct by this teacher giving rise to a disciplinary matter (personal deterrence)?
(ii)Is there a need to deter other teachers from similar conduct?
(iii)Is there a need to protect children and maintain public confidence in the teaching profession by reinforcing high professional standards and denouncing transgressions (even if there is no need to deter the teacher from repeating the conduct)?
(iv)Has the teacher breached the Act or failed to meet any professional standards approved by the Board, and if so, did the teacher do so knowingly?
(v)Did the teacher's conduct demonstrate serious incompetence?
(vi)Was the conduct in question an isolated occurrence, such that the Tribunal can be satisfied of the teacher's fitness to teach in the future?
(vii)The teacher's disciplinary history.
(viii)Does the teacher understand the error of their ways, and have they shown remorse or insight (or if not, does the teacher thereby demonstrate that they pose a risk to children)?
(ix)Does the teacher have any special skills which it is desirable to make available, in the best interests of children, notwithstanding the finding as to the existence of the disciplinary matter?
(x)The teacher's personal circumstances at the time of their conduct and at the time of imposing the penalty (although these are necessarily secondary to the protection of children).
(xi)Any other matters relevant to the teacher's fitness to teach, or which may be regarded as aggravating their conduct or mitigating its seriousness (although these are of less significance given the protective purpose of the Tribunal's jurisdiction).
We stress again that this is not an exhaustive list of all of the factors that may be relevant to the determination of the appropriate penalty in any given case under the Act. All of the circumstances of a case must of course be taken into account in assessing the appropriate penalty. Guidance may also be provided by the penalties imposed in other cases. All of these matters are to be considered in the context of the Tribunal's findings as to the existence of a disciplinary matter in relation to a teacher; that is, its findings as to the seriousness of the teacher's conduct and the teacher's explanation for it.[61]

The seriousness of the conduct in which Mr Clarke engaged

[61] Cf Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [30(1)] - [30(2)].

The particulars of the conduct said to constitute the serious misconduct in which Mr Clarke engaged are set out in Annexure A.
We note that the conduct in question occurred while Mr Clarke was registered as a teacher. Some, but not all, of the conduct occurred while Mr Clarke was employed by Broome Senior High School, and while Mr Clarke was engaged in teaching students.
While the facts set out in Annexure A do not disclose, in detail, what was involved in that conduct, enough detail is disclosed to confirm the correctness of the finding, agreed by the parties, that Mr Clarke's conduct constituted serious misconduct. In that respect, we make the following observations.
It is essential to the wellbeing of students, and to their ability to learn, that a teacher maintains an environment in the classroom which is conducive to learning. Swearing in the presence of students, and telling students that it is acceptable to swear and to listen to music in the classroom (other than for an educational purpose, such as in a music lesson), is conduct antithetical to establishing and maintaining an environment conducive to learning. Mr Clarke's conduct in this respect was completely inconsistent with the standards of behaviour properly expected of a teacher in the classroom.
Showing year 9 and year 11 students videos featuring swearing, nudity, violence, and simulated alcohol consumption and drug use, in circumstances where there is no suggestion that there was any educational purpose for doing so, is completely unacceptable conduct for a teacher. It was especially serious conduct in relation to the students who were in year 9, some of whom are likely to have been as young as 13 or 14 years of age. Exposing children to video content containing nudity (especially in the context of sexual activity), violence and simulated drug use, and which is not suitable for their age, or level of maturity, is clearly not in the best interests of the children concerned, and risks normalising conduct which the law regards as criminal in nature.
Similarly, in so far as Mr Clarke made inappropriate sexual references in the course of teaching a year 11 class, that conduct was also completely unacceptable, even if those comments were made, as Mr Clarke contended, in the course of disciplining students.
Finally, we regard Mr Clarke's conduct on 20 July 2016, after he had been dismissed from his employment as a teacher, to be especially serious misconduct. It involved private communications with a year 11 student, which involved sending the student messages about the student's sexual orientation, sexuality and sexual experiences, including enquiring about the number and gender of any sexual partners the student had had.
In each of the respects described in [46] - [49] above, Mr Clarke's behaviour crossed the professional boundary which a teacher must maintain in his or her relationships with students. The role of a teacher is not to act as if they are a student, or to cultivate private friendships with students. Such conduct is likely to adversely impact on the teacher's ability to treat all students equally and objectively. Furthermore it is essential to the well-being of every child that they are supported, and made to feel safe, in their sexual development and sexual orientation. This is especially important for children who may identify as other than heterosexual, and who may be subjected to bullying or ostracisation by other students as a result.
The parties agreed that Mr Clarke's conduct represented a departure from the standard of behaviour reasonably expected of a registered teacher. That conclusion is undoubtedly correct.
We also take into account the circumstances in which Mr Clarke's conduct occurred, which were agreed by the parties. Those circumstances were that at the time of the conduct, Mr Clarke was a registered teacher; he was in a significant position of trust; in his role as a teacher he was required to interact professionally with vulnerable students; his conduct was highly inappropriate given that position of trust; his conduct was not opportunistic, given that there were several instances of conduct involving different students; and his conduct had the potential to have lasting psychological and emotional consequences for the students exposed to it. In our view, those circumstances add to the seriousness of the conduct in which Mr Clarke engaged.
We are of the view that taken as a whole, the conduct described in Annexure A, in the circumstances in which it occurred, was conduct which is properly characterised as 'serious misconduct the nature of which renders the person unfit to be registered'.[62]
[62] See s 47(f)(ii) of the Act.
The phrase 'serious misconduct' is not defined in the Act. Given its ordinary meaning, that phrase refers to 'improper conduct, or wrong behaviour', of a weighty or important kind, or which is not trifling.[63] In particular, we are of the view that Mr Clarke's behaviour constituted a departure from the standard of behaviour reasonably expected of a teacher, and was behaviour that indicated that he was not a fit and proper person to be registered as a teacher.[64]
[63] Macquarie Dictionary Online.
[64] Cf s 24(d) of the Act.
We turn, next, to consider the mitigating factors relied on by Mr Clarke.

Mitigating factors

In the course of endeavouring to reach agreement with the Board about the facts relevant to the finding which should made by the Tribunal, Mr Clarke did not seek to advance any factors in mitigation. However, shortly prior to the hearing, Mr Clarke provided the Tribunal and the Board with a document setting out 'Matters for Mitigation'. He also made oral submissions about those matters at the hearing. The Board did not dispute any of the matters raised by Mr Clarke.[65]
[65] Ts 31 July 2020 p8.

In summary, the matters raised by Mr Clarke in mitigation were as follows. Mr Clarke appears to have had a difficult childhood. He did not have a stable family life, and did not spend much time with his parents. He was largely raised by his grandparents. His grandfather passed away when he was 8 years of age, and he was then raised by his grandmother. He was also bullied as a child.
The fact that despite that difficult childhood, Mr Clarke was able to obtain an education, to qualify as a teacher, and to obtain employment in that profession, is to his credit.
Mr Clarke explained that his motivation to become a teacher was prompted by his strong rapport with children, his desire to become the adult role model that he did not have in his own life, and his desire to not conform to stereotypes for 'black fellas' or 'white fellas'. Those are worthy motivations for pursuing the profession of teaching. Those motivations also support the conclusion that Mr Clarke has good prospects for rehabilitation, and support his re-entry into the teaching profession, should he pursue that, at some stage in the future.
Mr Clarke explained that at the time of the misconduct in question, he had been caring for his 14 year old nephew. He did so without financial support. It is fair to say that Mr Clarke found the physical toll, and emotional responsibility, of that role to be challenging, and 'hugely stressful'.[66] At the time, Mr Clarke's partner was unemployed, and Mr Clarke himself was not in full time employment. Rather, Mr Clarke worked as a relief teacher, and also worked in another part time job in the hospitality industry in order to make ends meet. Mr Clarke told us that he was exhausted all the time.
[66] Ts 31 July 2020 p18.
Mr Clarke expressed remorse for his conduct, and for any damage that he had caused to any of his students.
Mr Clarke did not seek to offer any justification for his conduct, but rather sought to explain the circumstances in which it occurred. That is to his credit. It is consistent with genuine remorse, and with his having real insight into the inappropriate nature of his conduct.
Mr Clarke acknowledged that the pressures he was experiencing in his personal life impacted on the professionalism of his conduct within the classroom. Nevertheless, with one exception, Mr Clarke did not seek to explain why the stresses he was under led him to engage in the behaviour constituting the serious misconduct in question, on more than one occasion, and even after his employment as a teacher was terminated. The exception pertains to the allegation, admitted by Mr Clarke, that he made inappropriate sexual references in the course of teaching a year 11 class. The agreed facts indicate that Mr Clarke offered an explanation for that conduct, namely that the comments he made were in fact made in the course of disciplining students, when he repeated sexually inappropriate comments that the students themselves had made. We have taken that into account by way of an explanation for that particular instance of misconduct, but it is hardly a satisfactory explanation. Repetition of sexually inappropriate comments, even if ostensibly for disciplinary purposes, hardly signals genuine disapprobation for the comments. We do not consider that to be a strongly mitigating consideration.
We note that at the time of the conduct in question, Mr Clarke had been provisionally registered as a teacher for 3 years, and had just under 3 years of full registration as a teacher. We were not informed about how much teaching experience Mr Clarke had actually had, although we note that at the time of the conduct in question, Mr Clarke was working as a casual relief teacher, which tends to suggest that he had been unable to obtain full time employment as a teacher. Overall, Mr Clarke does not appear to have had significant experience as a teacher at the time of the misconduct.
Mr Clarke was not, however, young in years at the time he engaged in the misconduct. He was 34 years of age at the time. His misconduct cannot be explained on the basis of youth and immaturity. Mr Clarke is now 39 years of age.
The 14 year old nephew, who Mr Clarke had taken into his care, has now grown into a young man who has secured employment, and is forging a life of his own.[67] The contribution Mr Clarke has made to that young man's life is to Mr Clarke's great credit.
[67] Ts 31 July 2020 p19.
We understand Mr Clarke continues to be employed. We asked whether Mr Clarke intended to pursue a teaching career in the future. Mr Clarke told us that 'to a degree' that was the case. He told us he loved teaching, and still does, and that the jobs in which he had worked since the termination of his teaching position all involved some kind of teaching role. He told us that he did not know if he would ever go back to teaching, but he would like the opportunity to do so at some stage in the future.[68]
[68] Ts 31 July 2020 p21.
Finally, we take into account the fact that apart from the misconduct the subject of these proceedings, Mr Clarke does not have any other history of disciplinary proceedings, in the course of his nearly six years as a teacher. That is to his credit.

Other factors relevant to penalty

We turn to consider the other factors relevant to penalty, which we have identified at [41]. We refer only to those which are relevant to this case.
The mitigating factors to which we have referred suggest that personal deterrence is not a compelling consideration in relation to the appropriate penalty. Mr Clarke is not registered as a teacher, but in any event, the mitigating factors to which we have referred suggest that he has developed insight into the inappropriateness of his conduct. In addition, the fact that Mr Clarke does not have any other relevant disciplinary history augurs favourably for his prospects of being fit to work as a teacher again in the future.
However, general deterrence remains an important consideration in this case. Other teachers, or persons who have been registered as teachers, must be left in no doubt that behaviour of the kind in which Mr Clarke engaged is wholly inconsistent with the standards of behaviour expected of teachers, and is inconsistent with fitness for registration as a teacher.
For the same reason, the penalty imposed in this case must leave no doubt that the highest standards of professional and personal behaviour are expected of teachers, in the interests of the protection of children, and to maintain public confidence in the teaching profession. A penalty which signals that Mr Clarke's conduct was a serious departure from those standards of behaviour is warranted.
The misconduct in which Mr Clarke engaged was not isolated in nature, as we have explained. We are not satisfied that Mr Clarke is presently fit to teach. A period of disqualification from applying for re-registration is clearly warranted. However, as we have said, Mr Clarke has recently demonstrated remorse for his conduct, and insight into the inappropriateness of that conduct, which augurs well for his prospects of rehabilitation.
Finally, a prohibition on applying for registration as a teacher is unlikely to have any immediate detrimental effect on Mr Clarke. It appears that he is in stable employment at present in another field. While he is precluded from pursuing a profession for which he has expressed real enthusiasm, which in itself is a not insignificant penalty, that does not militate against the imposition of a period of disqualification from applying for re-registration.

Overall assessment of the seriousness of Mr Clarke's conduct – other factors relevant to penalty

Having taken into account the nature of the conduct itself, and the circumstances in which it occurred, as set out in Annexure A, we are of the view that it is appropriate to make an order, with which the parties consent,[69] that a disciplinary matter exists, in that Mr Clarke's conduct constituted serious misconduct the nature of which rendered him unfit to be registered as a teacher.
[69] State Administrative Tribunal Act 2004 (WA) s 56.
The nature of that particular finding, together with the fact that Mr Clarke is no longer registered as a teacher, limits the Tribunal's discretion in relation to the penalty which may be imposed. Having taken into account the nature of the conduct itself, the circumstances in which it occurred, the mitigating circumstances, and all of the other factors to which we have referred, it is not appropriate to dismiss the complaint, or to impose a penalty in the nature of a caution or a reprimand, or to impose a fine. A more substantial penalty is warranted, in all of the circumstances.
However, the fact that Mr Clarke is not registered means that the only other order which may be made by the Tribunal is an order that Mr Clarke be disqualified from applying for registration for a specified period. That does not mean that the Tribunal is bound to make an order of that kind. However, we are of the view that the finding that Mr Clarke engaged in serious misconduct, which renders him unfit to be registered as a teacher, warrants an order precluding Mr Clarke from seeking registration for a specified period.

What period of disqualification from applying for registration should be specified?

As we have already mentioned, the parties agreed that Mr Clarke should be disqualified from applying to be registered as a teacher for a period of 3 years, and that that period be backdated to 3 May 2017 (when Mr Clarke's registration expired).
Counsel for the Board submitted that a 3 year period of disqualification accorded with disqualification periods ordered in similar matters in the Tribunal, and in tribunals in other States and Territories. She referred to Teachers Registration Board Western Australia and Willesee (Willesee),[70] Teachers Registration Board and Richardson (Richardson),[71] Teachers Registration Board and Reilly (Reilly),[72] Teachers Registration Board v Richmond (Richmond),[73] Queensland College of Teachers v Lobo (Lobo),[74] Queensland College of Teachers v Teacher CMH (Teacher CMH),[75] and Queensland College of Teachers v Teacher XBW (Teacher XBW).[76]
[70] Teachers Registration Board Western Australia and Willesee [2020] VR 44 (SAT Final Orders).
[71] Teachers Registration Board and Richardson [2020] VR 23 (SAT Final Orders).
[72] Teachers Registration Board and Reilly [2018] VR 225 (SAT Final Orders).
[73] Teachers Registration Board and Richmond [2017] VR 114 (SAT Final Orders).
[74] Queensland College of Teachers v Lobo [2019] QCAT 26.
[75] Queensland College of Teachers v Teacher CMH [2019] QCAT 164.
[76] Queensland College of Teachers v Teacher XBW [2019] QCAT 240.
As the Tribunal has recently emphasised,[77] when comparing penalties, care needs to be taken before assuming that the disciplinary orders made in one case should be regarded as indicating what disciplinary orders should be made in another case. The infinite variations in disciplinary matters, the circumstances in which such conduct takes place, the circumstances of the individual teachers involved, and the age of the students involved (if any), is such that a precise correlation between one disciplinary matter and another is unlikely to be found. A further difficulty in this jurisdiction is that, to date, the only decisions of the Tribunal which are available for comparison are consent orders made by the Tribunal, which necessarily contain only the briefest summary of the facts which have been agreed by the parties (usually following mediation) and which therefore provide no reasoning to explain the basis on which the penalty imposed was considered to be appropriate. Despite those limitations, the guidance provided by comparable penalties is useful for the purpose of ensuring broad consistency in the penalties imposed in this jurisdiction.
[77] Chiropractors' Board of Australia and Ebtash [2020] WASAT 86 (S) [99]; Medical Board of Australia and McCarthy [2020] WASAT 12 (S) [55], citing Lee v Health Care Complaints Commission [2012] NSWCA 80 [23] - [24].
Reliance on disciplinary penalties imposed in other States or Territories is more problematic unless the Tribunal can be satisfied that the court or tribunal which imposes the penalty is operating under the same, or a similar, legislative framework as the Tribunal. Queensland cases decided after January 2012, when the maximum period of prohibition from applying for registration appears to have been increased from 5 years to an indefinite period, appear to have been decided within a similar legislative framework to the Act.
We have taken into account the penalties imposed by the Tribunal in Willesee, Richardson, Reilly and Richmond, together with another recent decision, Teacher Registration Board of Western Australia and Weickhardt.[78]It is not necessary to set out the facts of each case. Each of them involved an order prohibiting the teacher from applying for re-registration for either 2 or 3 years from the date of the Tribunal's order. We have also taken into account the penalties imposed in the Queensland cases of Lobo,[79] Teacher CMH[80] and Teacher XBW.[81]
[78] Teacher Registration Board of Western Australia and Weickhardt [2020] VR 1 (SAT Final Orders).
[79] In Lobo, the Queensland tribunal made an order prohibiting the teacher from applying for re-registration for 36 months, backdated to commence from the date of the teacher's original suspension 2 years before the tribunal's order.
[80] In Teacher CMH, the Queensland tribunal made an order prohibiting the teacher from applying for re-registration for four months after the date of the order, taking into account the suspension of the teacher's registration for about 20 months prior to the date of the order, so that the total period during which the teacher's registration had been cancelled or suspended, attributable to the disciplinary matter, was 2 years: Queensland College of Teachers v Teacher CMH [2019] QCAT 164 [32].
[81] In Teacher XBW, the Queensland tribunal made an order prohibiting the teacher from applying for registration for a period of 3 and a half years from the date of cancellation of his registration by the tribunal.
Each of the cases to which we have referred bears some similarities with this case, but each of them also has some important differences when compared with this case. It suffices to say that a period of 3 years' disqualification in the present case (leaving to one side for the moment the question of credit or recognition for Mr Clarke's non-registration since 2017) would be broadly consistent with the penalties imposed in those cases.
We consider that a period of 3 years' disqualification from applying for registration is appropriate, having regard to all of the facts and circumstances of this case, and in particular to the need to deter other teachers from engaging in similar conduct in the future, to reflect the fact that Mr Clarke's conduct involved a serious departure from the standard of conduct properly expected of teachers, and to reflect the Tribunal's strong disapproval of Mr Clarke's conduct.
The next question is whether any allowance should be made, or credit given, for the fact that Mr Clarke has not been registered as a teacher since 3 May 2017, and for the fact that there was a substantial delay by the Board in bringing the proceedings against Mr Clarke, and if so, how that allowance should be made, or credit given.

Some allowance should be made for the fact that Mr Clarke has not been registered as a teacher since May 2017, and for the significant delay by the Board in commencing the proceedings in the Tribunal

The agreed facts in relation to these considerations are as follows.
The conduct constituting the disciplinary matter in the present case occurred between 5 April 2016 and 20 July 2016. As a result of some of the alleged conduct coming to light, the school terminated Mr Clarke's contract of employment on 7 April 2016. The alleged conduct was reported to the Department of Education. Some of Mr Clarke's conduct on 5 and 6 April 2016 was the subject of disciplinary action by the Department under the Public Sector Management Act 1994 (WA). (As we have noted, those are separate proceedings to the present proceedings, and, like criminal proceedings, do not preclude the Tribunal from dealing with a disciplinary matter arising under the Act in respect of the same conduct.)
After Mr Clarke engaged in further conduct in July 2016, following the termination of his employment, the school notified the Board of Mr Clarke's conduct on 1 November 2016. By mid-December 2016 the Board had formulated a complaint that Mr Clarke may have engaged in serious misconduct for the purposes of the Act, and he was notified of that complaint by letter on 20 December 2016.
An investigation was then conducted by the Board. Mr Clarke was not interviewed until 15 November 2017, at which point he made the admissions as to his conduct which are recorded in the agreed facts in Annexure A.
The present proceedings were not commenced in the Tribunal until 15 April 2020. It is not clear when the Board reached the conclusion that the allegation of serious misconduct should be referred to the Tribunal, but there appears to have been a basis for it doing so (by virtue of Mr Clarke's admissions) from 15 November 2017. Viewed from that perspective, there appears to have been a delay in the Board commencing the present proceedings of about 2 years and 5 months.
Meanwhile, the agreed facts record that Mr Clarke's registration as a teacher expired on 3 May 2017, due to his fees being in arrears. By that date, an investigation by the Board into Mr Clarke's alleged misconduct had been underway for over four months. However, the Board had not taken any action to suspend Mr Clarke's registration on an interim basis.[82]
[82] Pursuant to s 58 and s 59 of the Act.
In fact, what had occurred was that Mr Clarke did not apply to renew his registration. We asked the parties about the circumstances in which Mr Clarke did not seek to renew his registration. We sought that clarification because it was far from clear that Mr Clarke's inability to work as a teacher was wholly or partly attributable to a disqualification resulting from the present disciplinary process.
Mr Clarke told us that:
'I was told effectively immediately that I would no longer be allowed to teach until after the court case had been dealt with, which at the time I was informed it would be three to six months wait. I did not see the point in continuing my registration if I was no longer allowed to teach at any level. So I forgoed (sic) the registration for that purpose. It seems pretty pointless paying for something that I wasn't able to use.'[83]
[83] Ts 31 July 2020 p9.
Counsel for the Board was not able to completely clarify the position. However, based on her instructions, she conceded that an officer of the Board 'may have said that Mr Clarke could face an interim disciplinary order under the Act by the [Board]. That could have been said to him at the interview, or that could have been said to him during interactions with [B]oard staff … .'[84] In the end, she confirmed that the Board accepted that there was a link between Mr Clarke's non-registration as a teacher and the present proceedings.[85] The basis for the Board's position in that respect was said to be that:
'Mr Clarke said earlier that he saw no point in reapplying once his registration had lapsed because the investigation was afoot. And probably because of interactions with [an officer of the Board], he had an understanding that it would affect any application to re-register. … I think I can confidently note from the date, and note from the lapse of registration, what Mr Clarke has said today … and my instructions today, that there was that link in the sense that Mr Clarke has just conceded and accepted that he didn't apply for re-registration because he was subject to the Board's more formal investigations,'[86]
[84] Ts 31 July 2020 p11.
[85] Ts 31 July 2020 p12.
[86] Ts 31 July 2020 p12.

Had Mr Clarke been suspended, as a result of an order of the Tribunal, while the Board's investigation was completed, then a clear link would have been established between Mr Clarke's inability to work as a teacher, and the present disciplinary proceedings. However, the link between Mr Clarke's non-registration as a teacher, and the present proceedings is not so clearly defined, despite the Board's acceptance of its existence. Within a week of being dismissed from his position at Broome Senior High School, (and while still registered as a teacher) Mr Clarke secured a full time job in another field. By his own admission (in his Matters for Mitigation document) Mr Clarke acknowledged that this was a well-paying job. Given that he had been looking for full time work in order to provide for his family, and given that he had obtained only relief work as a teacher, we are not satisfied that the only reason for Mr Clarke's subsequent decision not to seek re-registration as a teacher was the ongoing investigation into his conduct, and his belief that that would prejudice his prospects of registration. On the other hand, we note that Mr Clarke did not seek to obtain re-registration at any period between the completion of the Board's investigation in about November 2017, and the commencement of the present proceedings in the Tribunal. That he did not do so is consistent with his belief that he would not be likely to obtain registration until the disciplinary matter was brought to a conclusion.
An additional factor which must be taken into account is the lengthy delay in this matter being commenced in the Tribunal. No satisfactory explanation for that delay by the Board was given. In so far as Mr Clarke did not seek re-registration because the Board's disciplinary processes had not been finally resolved, the Board's delay in pursuing the present proceedings meant that Mr Clarke had been unregistered for a lengthy period even before these proceedings were commenced.
Having taken all of these considerations into account, we have concluded that some allowance for the period of non-registration should be given but we do not consider that Mr Clarke should effectively be given credit for the entirety of the period of his non-registration since 3 May 2017, for two reasons. First, it is difficult to avoid the conclusion that a factor contributing, albeit to a lesser extent, to Mr Clarke's decision not to seek registration as a teacher, was the fact that he was able to obtain full time and satisfying employment other than as a teacher. Secondly, in our view, it is important that the Tribunal impose a period of disqualification that has a practical impact in order to reflect the Tribunal's disapproval of Mr Clarke's conduct. We are of the view that there should be a significant allowance made, in the penalty imposed, for the fact that Mr Clarke has not been registered as a teacher since 3 May 2017, on the basis that his decision not to seek re-registration was attributable, to a significant degree, to his belief, engendered by the Board, that he would not be re-registered until the Board's pursuit of the disciplinary matter was resolved. In our view, a fair allowance would be to attribute 2 years and 6 months of the total period of non-registration to that circumstance.
The next question is how that allowance should be reflected in the penalty imposed.

Backdating the commencement of the period of disqualification is not open

Counsel for the Board was unable to provide us with any assistance in relation to whether it was open to the Tribunal to backdate the penalty imposed on Mr Clarke. Counsel appears to have proceeded simply on the basis that it was open to the Tribunal to backdate the period during which Mr Clarke would be prohibited from applying for re-registration as a teacher[87] and that that backdating was possible because 'it's similar to criminal matters'.[88]
[87] Ts 31 July 2020 p15.
[88] Ts 31 July 2020 p16.
However, following the Tribunal's queries in relation to that aspect of the proposed orders, counsel for the Board submitted that 'the Board supports a future facing disqualification period'.[89] We understood that submission to be no more than an acknowledgement by the Board that the Tribunal was entitled to impose a prospective period of disqualification from applying for registration.
[89] Ts 31 July 2020 p16.
We have real doubts about whether the Tribunal is permitted to 'backdate' the disqualification period imposed under s 84(1)(a)(ii) of the Act, for the following reasons.
First, the Tribunal is a creature of statute, and its power to make any order is dependent on the statutory grant of power to do so. The terms of s 84(1)(a)(ii) (and similarly s 84(1)(b)(ii)) of the Act do not expressly permit the Tribunal to specify that its order will commence operation on a date prior to the date on which the Tribunal itself makes that order. There is nothing to suggest that the Tribunal's power extends to imposing orders with retrospective effect. Grants of statutory power are not construed to operate retrospectively in the absence of some indication in the legislation that the power is to operate retrospectively.[90]
[90] Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261.
Further, as the Tribunal's power to make an order under s 84 depends upon the Tribunal's finding that a disciplinary matter exists, it is not immediately clear why the Parliament would have intended that the penalty imposed would be able to be 'backdated' to commence before the finding itself was made.
That is particularly the case given that the Tribunal's disciplinary jurisdiction is protective in nature. An order with retrospective effect does not have that protective element to it.
The position in relation to sentencing for criminal offences provides no direct or analogous basis for construing s 84(1)(a)(ii) of the Act so as to permit the Tribunal to backdate the period of disqualification from applying for registration. Under s 87(1)(d) of the Sentencing Act 1995 (WA) a court is expressly permitted to backdate a sentence of imprisonment to take into account the fact that the prisoner was remanded in custody before his or her conviction.
On the other hand, s 73 of the State Administrative Tribunal Act 2004 (WA) permits the Tribunal to make ancillary orders. We have doubts as to whether that provision would permit the Tribunal to make an order with retrospective effect. However, there is competing authority elsewhere in respect of the operation of similar provisions.[91]
[91] See the cases discussed in Medical Board of Australia v Leggett [2015] QCAT 240 [13] - [19].
It is not necessary to resolve the question whether the Tribunal is, under s 84(1)(a)(ii) of the Act, permitted to make a disqualification order which is backdated to commence operation on a date prior to the date of the Tribunal's orders. That is because it is possible to make an allowance in a different way for the period for which Mr Clarke was not registered as a teacher. We propose to make that allowance by taking into account the period of 2 years and 6 months of non-registration to which we have referred, as a consideration relevant to the overall period of disqualification which should now be imposed.
We consider that when that allowance is made, the appropriate course is to commensurately reduce the period of 3 years' disqualification which we would otherwise have imposed in respect of this disciplinary matter. Consequently, the Tribunal should impose an order for disqualification which prohibits Mr Clarke from applying for registration for a period of 6 months from the date of the Tribunal's order. For the reasons we have given, that period should be understood as a further period of disqualification, in addition to the period of non-registration which can properly be attributed to the Board's pursuit of disciplinary proceedings against Mr Clarke.

Orders

The Tribunal notes the following:
The Teacher Registration Board of Western Australia (Board) alleged that there is proper cause for disciplinary action against Geoffrey Clarke under ss 83(1) and 84(1) of the Teacher Registration Act 2012 (WA) (Act) because the Teacher, whilst registered as a teacher under Part 3 of the Act engaged in serious misconduct the nature of which renders him unfit to be registered as a teacher, under s 47(f)(ii) of the Act.
The facts agreed by the parties are contained in Annexure A.
The Tribunal is satisfied that proper cause exists for disciplinary action against Geoffrey Clarke.
The orders which should be made are as follows:

1. Having regard to the matters agreed by the parties, and which are set out in Annexure A to these Orders, for the purposes of s 84(1) of the Teacher Registration Act 2012 (WA) (Act) a disciplinary matter exists, in that Geoffrey Clarke has engaged in serious misconduct, the nature of which renders him unfit to be registered as a teacher.
2. Pursuant to s 84(1)(a)(ii) of the Act, Geoffrey Clarke is disqualified from applying for registration as a teacher for a period of six months from the date of this order.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
GD
Associate to the Honourable Justice Pritchard
28 APRIL 2021

ANNEXURE A

The parties have agreed the following relevant facts:

Background

The Teacher, born 13 February 1982, is a 38 year old male currently residing in Broome, Western Australia who: -
(a)Held the Registration Number 33082118;
(b)Obtained provisional registration with the WA College of Teaching (WACOT) on 21 July 2011 which then continued with the Teacher Registration Board of Western Australia (TRB);
(c)Held provisional registration from 21 July 2011 to 5 May 2014 which expired due to fees being in arrears;
(d)Transitioned to full registration on 23 June 2014; and
(e)Held full registration from 23 June 2014 to 3 May 2017 which expired due to fees being in arrears.
The Teacher's registration remains expired.

Serious Misconduct - Particulars

The TRB has resolved under s 53(1)(e) of the Act to refer a complaint regarding the matters below to the State Administrative Tribunal (SAT).
The Teacher's conduct, as particularised below, constitutes serious misconduct rendering him unfit to be a registered teacher because at the time of the alleged conduct: -
(a)He was a registered teacher;
(b)He was in a significant position of trust;
(c)In his role, he was required to interact professionally with vulnerable students;
(d)He engaged in conduct that was highly inappropriate given his position of trust;
(e)His conduct was not opportunistic. There was several instances of it involving different students;
(f)His conduct had the potential to have lasting psychological and emotional consequences for the students exposed to it; and
(g)His conduct represents a departure from the standard of behaviour reasonably expected of a registered teacher.
Between 18 March 2016 and 6 May 2016, the Teacher was employed at Broome Senior High School as a contracted casual relief teacher.
On 5 and 6 April 2016, the school's management became aware the Teacher had allegedly made inappropriate sexual comments to two students.
As a consequence on 7 April 2016, the school terminated the Teacher's contract.
On 8 April 2016, the school submitted to the Standards and Integrity Directorate of the Department of Education (the Department) multiple Initial Reporting Forms regarding several instances of inappropriate conduct by the Teacher whilst teaching at the school.
On 10 August 2016, the Teacher was notified some of the conduct alleged to have occurred on 5 and 6 April 2016 was being dealt with by the Department as a disciplinary matter under s 81 of the Public Sector Management Act 1994 (WA) as a 'former employee' discipline process. He was ultimately reprimanded and fined two days' pay in respect of this conduct with his employment record marked with the notation, "not to be permitted future employment with the Department of Education without prior reference to the Director, Standards and Integrity".
On 22 September 2016, the school reported to the Department further concerns regarding the Teacher's communications with former students on Facebook which occurred after he ceased employment at the school.
On 1 November 2016, the school notified the TRB under s 42 of the Teacher Registration Act 2012 (WA) that the Teacher's contract had been terminated and that the Teacher may have engaged in serious misconduct as a teacher.
On 14 December 2016, the TRB considered the matter and formulated a complaint that the Teacher may have engaged in serious misconduct under s 47(f)(ii) of the Act.
The Teacher was notified by letter on 20 December 2016 of the TRB's decision to formulate a complaint against him and refer it for investigation under s 53(2) of the Act.
An investigation was conducted by the Investigations and Compliance Branch of the TRB.
That investigation confirmed that during and after his employment at Broome Senior High School, the Teacher failed to maintain professional emotional, relationship and communication boundaries with certain students.

Admissions to Alleged Serious Misconduct

On 15 November 2017, the Teacher voluntarily participated in a formal interview with the TRB during which he admitted to and agreed he had engaged in the following conduct which was put to him at interview: -
(a)Between 28 March 2016 and 1 April 2016, whilst teaching Year 9 students, the Teacher: -
(i)Told students it was ok to swear and listen to music in class;
(ii)Showed students YouTube videos featuring swearing, nudity, violence and simulated smoking, alcohol consumption and drug use and adult themes; and
(iii)Asked students which ones the 'dobbers' were in respect to the YouTube videos after a complaint was received in respect to them being played in class.
(b)Between 4 and 6 April 2016, whilst teaching students from different year levels, the Teacher: -
(i)Told Year 8 students it was ok to swear and listen to music in class;
(ii)During a sport and recreation class with Year 11 students, made inappropriate sexual references during his interactions with students including referring to a female student 'flossing her teeth with pubic hair'. On this point, the Teacher stated the comment was instigated by male students and that the Teacher repeated the comment when disciplining them; and
(iii)During a sport and recreation class with Year 11 students, showed students the same YouTube videos referred to in Paragraph 16(b)(ii) above and swore in the presence of students.
(c)On 20 July 2016, following his dismissal from employment at Broome Senior High School, the Teacher communicated on Facebook with a former Year 11 student sending messages the content of which was inappropriate and which included references to the following: -
(i)The student's sexual orientation;
(ii)The student's sexuality and appearance relative to their sexual history; and
(iii)References to the student's sexual experience / partners asking the student to specify numbers of sexual partners and whether they were male or female.

Mitigating Factors

The Teacher was invited to outline matters in mitigation in this document but has declined to do so.